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Title: City of Portland and LIUNA Local 483
Date: May 5, 2007
Arbitrator: David Gaba
Citation: 2007 NAC 102

Oregon Public Employment Relations Board

 

In the Matter of an Arbitration

Between

LIUNA, LOCAL 483,                                                  

And                                                                               

CITY OF PORTLAND,

(Brad Eveland Discharge Grievance)

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ARBITRATOR’S

DECISION AND AWARD 

INTRODUCTION

            This arbitration arises pursuant to a collective bargaining agreement (hereinafter Agreement) between the LABORERS' INTERNATIONAL UNION of NORTH AMERICA, LOCAL 483 (hereinafter Union), and CITY OF PORTLAND (hereinafter the City or Employer), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.

            A hearing was held before Arbitrator Gaba on January 29, 30, and, February 22, 23, 26, and 27, at Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  A transcript of the proceedings was provided.  Both parties filed post-hearing briefs on April 18, 2006.


APPEARANCES

On behalf of the Union:

Michael R. Dehner
Laborer’s Local No. 483
1125 SE Madison, Suite 206
Portland, OR  97214

On behalf of the Employer:

Lory J. Kraut

Deputy City Attorney

Portland City Attorney’s Office

1221 SW 4th Avenue, Rm 430

Portland, Oregon

ISSUE

At hearing, the parties stipulated to the following formulation of the questions presented for resolution by the Arbitrator:

1.         Did the City of Portland discharge Mr. Eveland without just cause?

2.         If the City of Portland discharged Mr. Eveland without just cause, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS

The Agreement contains the following sections that are relevant to this arbitration proceeding:

1.1.1        Probationary Period:  For the purpose of this labor agreement, probation is defined as a 180-day period, excluding any period of time off exceeding one (1) week in duration. Notwithstanding the above, the probationary period for Police Data Technician Trainee and Police Identification Technician Trainee shall be 270 days.  The probationary period may be extended for a period not to exceed ninety (90) days by mutual agreement between the City, the Union and the affected employee.

1.1.1.1  Notwithstanding Article 1.1.1 above, failure or inability by an apprentice or trainee to successfully complete the designated apprenticeship or training program may result in termination from the apprentice or training program even after completion of the probationary period.

1.1.1.2  All employees during their probationary period will be given a minimum of three written evaluations with a copy to the employee and the Union at appropriate intervals.  Nothing in this section shall limit management's right to terminate the probationary period.

*          *          *          *          *          *          *          *

33. Evaluations/Counseling.  Private discussions, evaluations or counseling may be used to review or evaluate employee performance or conduct and are not considered disciplinary action.  Private discussions, evaluations or counseling are intended to acknowledge employee performance, identify standards of performance and behavior, and should result in reviewing employee progress in meeting identified standards of performance and behavior.

*          *          *          *          *          *          *          *

34. Discipline and Discharge

34.1          Discipline and Discharge.  Disciplinary actions or measures shall include only oral warning, written reprimand, demotion, suspension and discharge. Disciplinary action or measures may be imposed only for just cause.  Any disciplinary action or measure imposed upon an employee may be processed as a grievance through the regular grievance procedure.

34.1.1         If the parties agree, a Performance Improvement Plan (PIP) may be used in place of the disciplinary steps prior to discharge in cases of employee performance problems.  The content of the PIP will be mutually agreed upon and either parties’ offer or refusal to agree to a PIP shall not be used against them in the grievance procedure.

34.1.2         If the City has reason to reprimand an employee, it shall be done in a manner that will not embarrass the employee before other employees or the public.  If the City has reason to discuss any disciplinary action or the possibility of any disciplinary action, the employee shall be given the option of having a Union representative present at any such discussion.  Written disciplinary actions shall not be posted; however, this does not preclude management from notifying other management and employees when restrictions are applied to an employee as a result of discipline.

34.2           Discharge, Demotion and Suspension:  The City shall not discharge, demote or suspend any employee without just cause who has completed his/her probationary period as provided in section 1.1.1.  If, in any case, the City feels that there is just cause for discharge, demotion or suspension, the employee involved and the appropriate Union shall be provided with a written notice of proposed discipline seven (7) calendar days before the effective date. Such notification shall state the nature of the offense for which the employee is being discharged, demoted or suspended, in detail, specifying dates, locations, and the particular nature of the offense committed by the employee and the right to respond to the authority proposing such action either orally or in writing prior to the effective date of proposed discipline.

34.3           Records of oral or written reprimand not involving other disciplinary action, shall be removed from an employee's personnel file  after one year, on the employee's request, provided in the judgment of the City, the employee has taken corrective action and has received no other disciplinary actions. Approval to remove such material from the file shall not be unreasonably withheld.

34.4           Any employee found to be unjustly suspended or discharged shall be reinstated with full compensation for all lost time and with full restoration of all rights and conditions of employment unless otherwise stipulated by mutual agreement or otherwise specified in the grievance procedure or by an arbitrator under the grievance procedures hereinafter set forth.

34.5          Just cause provisions of this section do not apply to temporary employees, as defined in Article 1.

34.6           Upon separation, discipline, or discharge, a temporary employee as defined in Article 1, may write a statement which will be maintained with the employee's official records on file in the Bureau of Human Resources.

35. Grievances, Complaints and Arbitration

35.1          Grievances, Complaints and Arbitration.  To promote better City-employee relationships, all parties pledge their immediate cooperation to settle any grievances or complaints that might arise out of the application of this Agreement, and the following procedure shall be the sole procedure to be utilized for that purpose.  The parties further agree that all meetings under this procedure will be conducted in a professional manner and in a spirit of mutual respect consistent with mutual resolution of grievances arising under this Agreement.

35.2          If there is a breach of any provision of this Agreement affecting a group of employees, or if the breach of any provision of this Agreement is the result of an agreement reached between the City and an employee without the approval of the Union involved, the Union shall have the right to take up such breach with or without the consent of the employees or employee involved.

35.3          Procedure:

35.3.1    Time Limits:  It is important that grievances be processed as rapidly as possible. The number of days indicated at each level should be considered as a maximum, and every effort should be made to expedite the process. The time limits specified may, however, be extended by mutual agreement. Failure by the City to respond in writing within the time limits at each level shall render the grievance automatically appealed to the next level in the grievance procedure. The Union will advise the appropriate individual at the next level within a reasonable period of time.

35.3.2    Informal Level:  Before initiating a formal written grievance at Level One, the employee shall attempt to resolve the matter by informal conference with his or her immediate designated supervisor outside the bargaining unit. If the immediate supervisor is not available, the employee shall attempt to contact another supervisor or manager.  The employee shall notify the Union, and a representative of the Union shall be given the opportunity to be present at any meeting under this section.  Either party may declare that the informal level has been completed.

35.3.3    Upon appeal of any discharge, demotion or suspension before the Civil Service Board any grievance filed under the terms of this Agreement shall be withdrawn.

35.3.4    Level One -- Bureau Head or Designee:

a.    If a dispute is not resolved at the informal level, the employee or Union shall file the grievance in writing on the appropriate form to the Bureau Head or Designee within thirty (30) calendar days of the claimed violation.

b.   The grievance statement shall specify (each of) the provision(s) of this Agreement claimed to be violated and the manner in which such provision is claimed to have been violated, all pertinent information, the remedy sought, and shall be signed by (each of) the employee(s) and/or by the Union.  The Grievant and the Union have a good faith obligation to be as complete and forthcoming as possible in making this statement and providing information regarding the grievance.

c.   The parties shall meet to discuss the grievance with the appropriate bureau head or designee to whom the grievance is submitted shall communicate his or her decision, along with the reasons therefore, to the employee and the Union in writing within twenty-one (21) calendar days after having received a timely appeal to Level One.

35.3.5    Level Two -- Bureau Head/ Human Resources:

a.         If the employee or the Union is not satisfied with the disposition at Level One, the employee or the Union may appeal the grievance to the Bureau of Human Resources and the bureau head Level Two within fourteen (14) calendar days after receiving notice of the Level One decision.

The Union or the Grievant with the concurrence of the Union shall have the right to perfect the grievance prior to Level Two with the understanding that the right to perfect is limited to the substantive issues previously raised in the grievance.

The Unions shall have a right to take up any disciplinary action brought against a Shop Steward by the City as a grievance at Level Two of the grievance procedure (see Clause 22.2 of this Agreement).

A grievance involving a suspension, demotion or discharge shall be filed directly to Level Two no later than fourteen (14) calendar days of receipt of written notice of imposed discharge, demotion or suspension

To submit a grievance to Level Two a copy of the grievance shall be filed simultaneously with the office of the Commissioner-in-Charge and the Bureau of Human Resources.  The Commissioner in Charge may either retain jurisdiction at this level of the procedure or delegate the Bureau of Human Resources /bureau head to handle the grievance with full authority to settle it.  If the Commissioner in Charge does not retain jurisdiction of the grievance within seven (7) calendar days after receiving a timely appeal, the grievance shall be considered as having been delegated to the Bureau of Human Resources.

The appeal shall include a copy of the original grievance, the decision rendered at Level One, if any, a concise statement of the reasons for the appeal and the specific relief requested. 

Upon timely filing, the written grievance will be discussed between the employee, the Union involved and the Director of the Bureau of Human Resources /bureau head or his/her designee within twenty-one (21) calendar days after filing, unless extended by mutual written consent.  The Director of the Bureau of Human Resources or his/her designee shall respond to the grievance within thirty (30) calendar days after the grievance has been filed at Level Two.

Upon the timely filing of written grievance as specified herein, the Union shall have sole discretion as to the processing of such grievance and shall have the right to carry the grievance through the grievance procedure with or without the consent of the employee(s) originally filing the grievance.

35.3.6       Level Three -- Mediation:

a.   If the Union is not satisfied with the Level Two, upon the mutual agreement of the parties it may be referred to mediation within fourteen (14) calendar days after the Level Two disposition has been rendered.

b.  The costs of the mediator will be equally split between the parties.

35.3.6.1.1.1     Level Four -- Arbitration:

a.   If the grievance remains unresolved at Level Two or Level Three (mediation), the local Union involved shall have the right to refer the matter to arbitration. In the event the local Union elects to do so, it must notify the Bureau of Human Resources of its decision in writing within twenty-one (21) calendar days of denial of the grievance at Level Two or twenty-one (21) calendar days after the close of mediation if the parties agreed to refer the grievance to Level Three.

b.   After the grievance has been referred to arbitration, the parties or their representatives shall jointly request the State Conciliation Service for a list of names of seven (7) arbitrators. The parties shall select an arbitrator from that list by such method as they may jointly select, or if they are unable to agree upon a method, then by the method of alternate striking of names under which the grieving party shall strike the first name objectionable to it, and the City shall then strike the first name objectionable to it. The final name left on the list shall be the arbitrator.

c.   The arbitrator's decision shall be final and binding, but the arbitrator shall have no power to alter, modify, amend, add to or detract from the terms of this Agreement. The decision of arbitration shall be within the scope and terms of this Agreement and shall be in writing.

d.   The City and local Union involved shall divide equally the arbitrator's fee, the cost of any hearing room and the cost of a shorthand reporter if requested by an arbitrator. All other expenses shall be paid by the party incurring them.

e.   The time limits specified herein shall be jurisdictional unless waived by mutual agreement of the parties. The local Union involved shall have sole authority to determine whether a grievance shall be submitted to arbitration, and any such decision or settlement of the grievance between the Union and the Bureau of Human Resources/Bureau Head in good faith shall be binding on all parties.

f.    The parties shall make a good faith effort to avoid unreasonable delay in scheduling arbitration hearings.

RELEVANT PROVISIONS OF THE CITY’S

HUMAN RESOURCES ADMINISTRATIVE RULES (HRAR)

Harassment.  Rule 2.2 defines “harassment” as:

1.         verbal or physical conduct that is “derogatory” or shows “hostility” towards an individual because of his sex or sexual orientation (or other protected status); and

2.         conduct that has the “purpose or effect” of:
a.          creating an intimidating, hostile, abusive or offensive work environment;
b.          unreasonably interfering with an individual’s work performance;
c.          adversely affects an individual’s employment and employment related opportunities.

Sexual harassment (Rule 2.2) includes:

Unwanted sexual advances, requests for sexual favors, and other sexually oriented verbal or physical conduct . . . where . . . such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive work environment. 

Disciplinary Action.  HRAR Rule 5.01 (Discipline) provides, in part:

Cause for disciplinary action shall include, but not be limited to, the following:

1.   Incompetence, inadequate performance or non-performance of assigned duties

2.   Neglect of duty or negligence in performing of duty causing substantial risk of personal injury or damage to property.

*          *          *          *          *          *

9.   Discourteous treatment of the public or other employees, offensive conduct or conduct unbecoming an employee.

*          *          *          *          *          *

Any employee within the classified service is subject to disciplinary action for cause. Such discipline may include but is not limited to an oral reprimand, written reprimand, demotion, loss of pay, suspension or discharge.

 

Discipline of permanent (non-probationary) employees in the classified service is normally progressive, beginning with an oral or written warning and proceeding to suspension, demotion or discharge. Disciplinary action may also take other forms such as withholding privileges. Serious offenses such as stealing, workplace violence, conviction of a bias crime, unwelcome sexual touching, refusal to obey a legitimate order or other causes in which the employee’s performance or behavior will not be improved through corrective measures may justify discharge without the necessity of prior warnings or attempts at corrective discipline. In all cases, the level and degree of penalty shall be in keeping with the seriousness of the offense, taking into account the circumstances relevant to the incident.

 

For less serious infractions, which warrant progressive discipline, the ultimate goal is to put the employee on notice of unacceptable conduct and to give the employee a reasonable opportunity to modify his or her behavior.”  (Ex. E-9)

Rule 2.02 (Workplace Harassment and Discrimination Prohibited) provides in part:

Workplace harassment manifests itself in two primary ways:

1. In forms of harassment that violate state and federal laws; and

2. In forms of harassment that may not violate law, but which violate this City rule because they are not conducive to creating a work environment for employees that is consistent with the intent of this rule.

This rule covers both types of harassing behavior.  

            *          *          *          *          *          *          *

[What Should Employees Do:]

1. Not engage in discrimination, harassment or retaliatory conduct in violation of this rule.

 

2. If you believe you are being subjected to conduct that violates this rule: tell the offender to "stop it!" Say it firmly, without smiling or apologizing. Nothing prevents you from filing a complaint because you did not tell the offender that his or her behavior is unwelcome or ask the offender to stop.

 

3. Promptly file a complaint using the procedure below if you are subject to discrimination, harassment or retaliatory conduct prohibited by this rule. If you are witness to prohibited conduct, you are encouraged to bring that information to the attention of a supervisor.”

 

*          *          *          *          *          *          *          *

 

Important Notice to All Employees: Employees who have experienced conduct they believe is contrary to this rule have an obligation to take advantage of the complaint procedure included in this rule. An employee's failure to fulfill this obligation could affect his/her other rights. Every employee shares the responsibility for bringing to the City’s attention conduct that interferes with providing a work environment free of harassment and illegal discrimination.”

FACTS

The facts in this matter are not seriously in dispute. The City employed the Grievant, Brad Eveland, from December 7, 2000 until August 4, 2006 as a Utility Worker II in the Maintenance Bureau for the City of Portland.  Mr. Eveland spent the first few years working on the barricades for construction projects, mostly working alone.  Mr. Eveland’s prior work history included three prior disciplines including a suspension in 2001 for inappropriate communication with an Arab-American employee that violated the prohibition against discrimination.  Subsequently, Mr. Eveland violated safety rules twice while on the job (an accident in 2003 while not wearing safety belt and speeding in City vehicle in 2004).  Mr. Eveland received an oral warning and a written reprimand, for these latter violations. 

The Investigation

The investigation into Mr. Eveland’s workplace demeanor and communications commenced after a co-worker complained to a supervisor that he had overheard other employees discussing Mr. Eveland’s inappropriate communication with co-workers on February 9, 2006.

The City discharged Mr. Eveland based on eight incidents with different individuals.  The City conducted several investigative interviews with various co-workers including Paul Faltersack and Marc MacDonald on February 14, 2006; Tom Aubuchon, Michael Geelan, Mitchell Talley, and Terry Lowe on February 15, 2006; Joe Curry and Brad Eveland on February 21, 2006; and Chris Reed on February 23, 2006. 

The first discharge of Mr. Eveland was effective April 24, 2006.  On May 2, 2006 the first grievance was filed claiming discharge without just cause.  On June 15, 2006 the City rescinded its discharge and reinstated Mr. Eveland with back pay.  Subsequently, the City interviewed Matt Vassallo and Daniel Sherwood and initiated the process that resulted in Mr. Eveland’s second discharge in August, 2006.  Mr. Eveland was accused of repeated violations of the city of Portland’s Rule 2.2, “Sexual Harassment.” 

Upon being hired, Mr. Eveland, had attended mandatory training on the scope and meaning of Rule 2.2, lasting approximately two hours.  The class reviewed examples of prohibited conduct including, discriminatory employment decisions, offensive or derogatory comments, unwelcome physical contact, physical or graphic harassment, jokes using stereotypes or assumptions, and exclusion/ostracism.  Particular examples presented at that time included “rude or abusive treatment of one sex more than the other . . . foul language, sexual innuendos, derogatory or suggestive comments . . . and jokes of a sexual nature.” 

The City terminated Mr. Eveland for engaging in a pattern of conduct with seven male employees who were new to the Maintenance Bureau by subjecting them to sexual innuendo in the form of remarks, gestures and unwelcome touching in violation of Rule 2.2.  None of the individuals involved in the incidents uncovered by the City’s investigation had complained about Mr. Eveland’s conduct. 

The Bad Acts

            Mr. Eveland engaged in the following conduct with the employees listed bellow. Matt Vassallo

At sometime in 2004 Mr. Eveland came up behind Matt Vassallo without any warning and grabbed him in a bear hug.  Mr. Vassallo responded by demanding that Mr. Eveland get off of him and Mr. Eveland released him.  Mr. Vassallo had previously referred to Mr. Eveland as a bear which Mr. Eveland took as an ursine simile.[1]  When Mr. Vassallo became a permanent employee in the summer of 2004, Mr. Eveland commented that he could imagine using Mr. Vassallo’s sideburns as “handlebars.”  Mr. Vassalo has large sideburns and the “handlebar” comment was an allusion to oral sex.  Mr. Vassalo did not complain to management. 

Michael Geelan 

In the summer of 2004 Mr. Eveland was conversing with Mr. Geelan about his family and was expressing disgust about his habit of chewing tobacco when he grabbed Mr. Geelan’s vest and pulled him toward him while making kissing noises.  Mr. Geelan was startled and reflexively spit tobacco juice on Mr. Eveland.  Other employees were present.  In October of 2004 Mr. Eveland and Mr. Geelan were assigned to work together.  While riding in a truck together Mr. Geelan informed Mr. Eveland that he had recently been in a car accident.  Mr. Eveland sped up towards a regulated intersection to scare Mr. Geelan, stopping only at the last minute.  Mr. Geelan did not complain to management. 

Joe Curry

Joe Curry worked with Mr. Eveland in 2006, when a news team was documenting the Maintenance Bureau’s work on potholes.  While driving to a new location, Mr. Eveland suggested that it might be fun to pose as a gay couple for the news team as a joke, further suggesting that they act as “life partners” and kiss on TV.  Mr. Curry was not amused.   Mr. Curry did not complain to management. 

Mitch Talley

In 2005 Mr. Talley and Mr. Eveland were working as a team.  While driving to a new location Mr. Talley indicated that he needed to use a bathroom.  Mr. Eveland gave Mr. Talley several jabs in the area of his bladder.  Mr. Talley did nothing in response.  Mr. Talley did not complain to management. 

Thomas Aubuchon

While working together as a team in 2006, Mr. Aubuchon criticized the way Mr. Eveland had parked the City vehicle.  Mr. Eveland was put on the defensive as indicated by his response, “If you don’t like it -- right here!“ and pointed in the general direction of his crotch.  The remark was a reference to oral sex.  Mr. Aubuchon did not complain to management. 

Dan Sherwood 

Mr. Eveland called Mr. Sherwood a “candy ass” but stopped when requested.  Sometime after this, they were again paired to work together.  As they were driving, Mr. Eveland pushed on Mr. Sherwood’s arm and then started tricking Mr. Sherwood into turning toward his upheld finger so that he could enjoy watching him react reflexively to an object located too near his eye.  Mr. Eveland persisted in subjecting Mr. Sherwood to this stunt several times before abandoning it.  Mr. Sherwood did not complain to management. 

Don Jahn 

Don Jahn and Mr. Eveland worked together at the end of 2005 and beginning of 2006.  Mr. Eveland’s behavior while in a four-man crew was normal, or at least normal for Mr. Eveland.  While on their first two-man crew assignment, Mr. Jahn was especially quiet and Mr. Eveland asked him whether he needed a hug.  Mr. Jahn thought this was odd at the time.  The comment was made as a rhetorical question response to Mr. Jahn’s mood and not as a sexual overture. 

Just before Valentine’s Day, Mr. Eveland startled Mr. Jahn with wondering what Mr. Jahn gotten him for Valentine’s Day.  A few days later, Mr. Eveland made a remark to Mr. Jahn regarding a pedestrian’s appearance:  “Was that a guy or a girl?  If it was a girl, she was awful butch.  And if it was a guy, he was awful cute.”  Later on that day, Mr. Eveland remarked that he thought Mr. Jahn deserved a back rub. Mr. Jahn then decided that Mr. Eveland was gay and asked the supervisor, Pete Schillaci, to refrain from pairing him with Mr. Eveland in future work assignments.

Other Odd Behavior

Mr. Eveland often referred to new employees as “fresh meat” and sometimes referred to them as “bitches.”  Mr. Eveland would often use the phrase “by the end of the day you will be sucking my dick and liking it.”  In using this phrase Mr. Eveland was not meaning to convey its literal meaning, but was attempting a figurative expression.  The term used was an idiomatic expression.

Mr. Eveland would blow kisses to other employees around Valentines Day and engaged in a series of behaviors that can be categorized as puerile, childish, boorish, immature, and offensive to adults. Mr. Eveland has the sense of humor of an average fourteen year old boy.  Mr. Eveland has the sense of propriety of an average eleven year old boy.  More-likely-than not, Mr. Eveland is not gay.  Mr. Eveland’s behavior would be offensive to any gay man. Mr. Eveland was an adequate employee. 

DECISION

The Applicable Standard is Just Cause.

            Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence:  that the “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness.[2]

Described in very general terms, the applicable standard is one of reasonableness:

Whether a reasonable (person) taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline).[3]

            As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is, in fact, guilty of misconduct.  An employer’s good faith, but mistaken, belief that misconduct occurred will not suffice to sustain disciplinary action.  If misconduct is proven, another consideration, unless contractually precluded, is whether the severity of disciplinary action is reasonably related to the seriousness of the proven offense and the employee’s prior record.  It is by now axiomatic that the burden of proof on both issues resides with the employer.[4]

            The just cause standard has been seminally defined by Arbitrator Carroll Daugherty, and incorporates the following seven tests:

1.   Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

2.   Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?

3.   Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

4.   Was the company’s investigation conducted fairly and objectively?

5.   At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

6.   Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

7.   Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?[5]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.[6]

The Applicable Burden of Proof is Clear and Convincing Evidence.

            In a case involving the discharge of an employee, the burden is on the employer to sustain its allegations, and to establish that there was just cause for the termination.  As the leading treatise in the area noted:

Discharge is recognized to be the extreme industrial penalty since the employee’s job, seniority and other contractual benefits, and reputation are at stake.  Because of the seriousness of the penalty, the burden generally is held to be on the employer to prove guilt of wrongdoing, and probably always so where the agreement requires “just cause” for discharge.[7]

In this context, it is appropriate for an arbitrator to demand clear and convincing evidence.  As Arbitrator Richman explained:

The imposition of a lesser burden than clear and convincing proof fails to give consideration to the harsh effect of summary discharge upon the employee in terms of future employment.[8]

Only if misconduct in the instance that led to the termination is proven can an arbitrator go on to address the question of the appropriateness of disciplinary action.

Has the Just Cause Standard Been Met?

In many respects this case is very simple.  The facts are not materially in dispute; Mr. Eveland is a “creepy” profane individual who admits to most of the conduct he is accused of.  Where memories differ due to passage of time, I find other employees recollections to be superior to Mr. Eveland’s, especially their contemporaneous statements that were recorded as part of the investigation which took place more than a year ago. 

I also agree wholeheartedly with the legal arguments posited by the City regarding sexual harassment, specifically:

Arbitral decisions reflect a consensus that sexual harassment of a serious nature is the type of socially disapproved conduct for which discharge is appropriate, even for first-time offenses and/or extremely long-term employees.  (citations omitted)  These decisions either explicitly or implicitly recognize an employer’s legal obligation to prevent harassment and the corollary responsibility to impose a penalty calculated “to assure a workplace free from sexual harassment.”  In re Safeway, 112 LA at 1054.  As arbitrator Brunner recognized in George Koch Sons, supra, there is no room for “one free bite” in sexual harassment cases.[9] 

As recently stated by Arbitrator Cavanaugh:

I begin with the recognition that sexual harassment in all its various forms, subtle and not so subtle, has been a significant impediment to full participation in the workplace, particularly the participation of women. In my view, therefore, the City not only has a right, but also a legal and moral obligation to enact and enforce policies that encourage appropriate interaction between employees and that punish inappropriate behavior in constructive ways (if possible).[10]

            If Mr. Eveland were a gay employee and his comments were sexual advances, there would be no question that he should be removed from the workplace.  However as the city states in its brief:

It is difficult to pigeon hole Eveland’s conduct with precision, but the predominant theme running through most of his conduct is homosexuality. (Eveland’s misconduct defies exact categorization.  For example, the incidents involving Mitch Talley and some of the conduct directed at Dan Sherwood had no sexual overtone and are best described as bullying, e.g. calling Mr. Sherwood “candy ass”; poking Mr. Talley near the kidney, etc.) [11]

Clearly the City employees conducting the investigation thought that Mr. Eveland was gay and was seeking sexual gratification from his co-workers.  It was the propositioning another employee based on some sort of sexual desire that elevated the crude banter that Mr. Eveland engaged in, to sexual harassment that warranted discharge. As stated by Mr. Irving during the hearing:

                            347

22   Q.   All right.  Do you recall another argument
23        raised by the union that -- and I think you
24        mentioned this -- that this behavior was
25        commonplace at the maintenance bureau?

                            348

 1   A.   I do recall that argument being made, yes.
 2   Q.   Did you find that persuasive?
 3   A.   No, I didn't.
 4   Q.   And why not?
 5   A.   While I stipulate that, you know, there is a
 6        likelihood that employees joke amongst
 7        themselves, between themselves, the -- that
 8        level of banter, if you will, is not
 9        commonplace in the bureau.  It's something that
10        is clearly, as per the work rules, as per the
11        HR 2.2 admin rule, it's totally unacceptable to
12        even engage in behavior that's propositioning
13        another employee based on some sort of sexual
14        desire.
15   Q.   What did you -- What particular behavior did
16        you believe was propositioning an employee
17        based on Mr. Eveland's sexual desire?
18   A.   Well, the act of attempting to -- well,
19        grabbing an employee, attempting to kiss the
20        employee, would lead one to believe that there
21        was an effort to advance or execute some sexual
22        activity that was unwelcomed.  Hugging an
23        employee without one's permission would, in my
24        mind, also be -- could be construed as a sexual
25        advance.  Pointing to one's genitals, or

                            349

 1        Mr. Eveland pointing to his genitals, as per a
 2        conversation with a co-worker, could be
 3        construed as a sexual advance as well.

Kevin Williams, the Public Works Supervisor, was also clear in his testimony that he believed Mr. Eveland was making sexual advances on his co-workers.

                            525

 4   Q.   Okay.  Bear with me for just a moment, please.
 5        Okay.  Going back to that third paragraph
 6        down in the section we were just discussing in
 7        joint Exhibit 2.  Was it your understanding, as
 8        a result of your involvement in the
 9        investigation, that Mr. Eveland's behavior was
10        sexual, consisted of sexual advances on some of
11        these individuals?
12   A.   Yes.

If, in fact, Mr. Eveland was gay and seeking sexual gratification from numerous co-workers, he should be discharged. 

Was Mr. Eveland Seeking Sex From His Co-workers?

Based on the totality of the evidence presented at the hearing I believe that Mr. Eveland is not gay and was not seeking to establish sexual or romantic relationships with any of his co-workers.  There is no question that Mr. Eveland has a sophomoric and inappropriate sense of humor and would occasionally engage in what I can only describe as faux-gay behavior for his personal amusement.  Mr. Eveland’s behaviors ranged from the insipid (blowing kisses to co-workers) to the patently offensive (grabbing Mr. Geeland and making kissing sounds).  However, the record does not indicate that he was seeking to sexually harass his co-workers or to obtain sexual gratification from any of them.

If Mr. Eveland were a gay predator seeking the affections of other city employees, he must be the most inept sexual predator of all time.  Gay men do not attract other gay men with crude references to oral sex, poking co-workers in the bladder, or making kissing sounds to a co-worker whose mouth is full of chewing tobacco.  If Mr. Eveland were truly interested in kissing Mr. Geeland, he would have certainly not done so in a barricade lot while Mr. Geeland’s mouth was full of tobacco  and while other employees were present.  It is more-likely-than-not that Mr. Eveland was engaging in what is normally referred to as horseplay when he committed the actions that he was disciplined for; stupid, puerile, immature, and impermissible horseplay, but horseplay (and not sexual harassment) nonetheless.  Likewise the numerous comments regarding oral sex made by Mr. Eveland are susceptible to more than one interpretation.

            In the English language words in literal expressions denote what they mean according to common or dictionary usage.  Words in figurative expressions connote additional layers of meaning.  When figurative expressions are used correctly, the listener understands that the speaker intended it to mean something different. For example, the words, "The ground is thirsty" mixes the usage. The ground is not alive and therefore does not experience a need to drink.  The listener can immediately understand that a literal interpretation is not appropriate and confidently interpret the words to mean "the ground is dry.”

Knowing the meaning of Mr. Eveland’s phrases could be somewhat difficult due his use of idiomatic speech to attempt to convey his figurative expressions. An idiom is an expression whose meaning cannot be deduced from the literal definitions and the arrangement of its parts, but refers instead to a figurative meaning that is known only through conventional use.

In the English expression to kick the bucket, a listener knowing only the meaning of kick and bucket would be unable to deduce the speakers intended meaning, which is to die. When Mr. Eveland informed listeners that by the end of the day you will be sucking my dick, and liking it, he did not mean to convey that the listener would be shortly engaging in oral sex with Mr. Eveland and deriving pleasure from it, rather Mr. Eveland appears to have been attempting to convey the message that the listener would be following Mr. Eveland’s directions. Idioms tend to confuse those not already familiar with them, students of a new language must learn its idiomatic expressions the way they learn its other vocabulary; through memorization.  This use of an idiom can be seen through the testimony of Mr. Vassalo in which it appears that Mr. Eveland’s comments regarding “sucking” were motivated by anger instead of lust and appear to be an idiomatic colloquialism.

                            274

 4   Q.   When we met and we were discussing it, do you
 5        remember being a little bit more specific in
 6        terms of what Mr. Eveland said?
 7   A.   Something like, "You'll be sucking it by the
 8        end of the day, and liking it," or something
 9        like that.
10   Q.   Okay.  And what's the context of him making
11        that statement?  Had you done something to make
12        him angry?
13   A.   I might have told him to go to hell, or
14        whatever, before, or leave me alone.  I don't
15        remember.

Examples of the figurative use of idioms can be found throughout our culture.  As the noted American lyricist Eminem recently penned:

So you can suck my dick if you don't like my shit,

cause i was high when i wrote this so suck my dick.

Cause i don't give a fuck if you don't like my shit,

cause i was high when i wrote this so suck my dick.[12]

Further, terms such as suck my dick may have colloquial application particular to certain industries or sub-cultures. A colloquialism is an expression not used in formal speech or writing. Words that have a formal meaning may also have a colloquial meaning that, while technically incorrect, is recognizable to some individuals due to common usage by a particular group of people. Eminem and Mr. Eveland are aware that suck my dick is a colloquial usage, a colloquialism that Mr. Eveland’s supervisors may be unaware of.  The thirteen year olds who download Eminem’s lyrics (above) for use as a ring tone on their cell-phones[13] know that Eminem is not gay and that he is not inviting them to have sex with him; they have simply learned the colloquial meaning of the phrase suck my dick.

Credibility of the Witnesses

            The passage of time in this case resulted in almost all of the witnesses having a limited or impaired recollection of the facts. I found the testimony of Mr. Curry, Mr. Geelan, Mr. Talley, and Mr. Aubuchon, to be quite credible given their admission of an inability to remember exactly what happened.  I did not find Mr. Eveland to be particularly credible and specifically found his testimony regarding Mr. Aubuchon to border on unbelievable.

            The very nature of this case was bound to lead to diminished recollections of the witness.  When the City began its investigation, they simply began asking employees about any bad things Mr. Eveland had done… ever. By inquiring “Can you please explain in detail…can you tell us, since you’ve been working in our division, have you experienced any inappropriate behavior…” the City was going on a fishing expedition. Unfortunately for Mr. Eveland the City caught a large number of fish. Unfortunately for the City, a number of the allegations against Mr. Eveland were at the time of the investigation several years old. Given that the employer has the burden of proof, a lack of specific recall by the witnesses works to Mr. Eveland’s advantage.

Were Mr. Eveland’s Co-workers Offended or Traumatized?

Matt Vassallo 

            When Mr. Eveland came up behind Matt Vassallo without any warning and grabbed him in a bear hug,  Mr. Vassallo responded by demanding that Mr. Eveland get off of him and he was released.  There is no evidence in the record that Mr. Eveland ever touched Mr. Vassallo again.  Apparently Mr. Eveland knew that he should stop when people complained about his horseplay.  “No” did mean “no.”

            Clearly there had been some banter and horseplay going on between Mr. Eveland and Mr. Vassallo including Mr. Vassallo calling Mr. Eveland a “bear.”

                            278

21   Q.   Okay.  Do you remember making a statement to
22        him to the effect that, "We finally figured out
23        what kind of category you belong in:  You're a
24        bear," or something to that effect?
25   A.   It's possible I said something like that to

                            279

 1        him.
 2   Q.   Okay.  Does it sound familiar?
 3   A.   It sounds familiar.  I would -- yeah.
 4   Q.   Okay.  Do you know -- Do you know what that
 5        reference is to a bear?
 6   A.   Yeah.
 7   Q.   Okay.  Can you tell us what that means, please.
 8   A.   It's a big, older, hairy homosexual.

            Mr. Vassallo’s definition of “bear” comports with contemporary slang: Bear, A term used by gay men to describe a husky, large man with a lot of body hair.[14] At the hearing Mr. Eveland appeared to be an overweight man with a lot of body hair.  Mr. Eveland’s actions with Mr. Vassallo were not spontaneous, they had bantered before.  Further, Mr. Vassallo was no stranger to vulgarity in the workplace.

                            284

25      BY MR. DEHNER:  Okay.  Let's take some

                            285

 1        examples:  Dirty jokes.  Do you hear dirty
 2        jokes in the workplace?
 3   A.   Yes.
 4   Q.   Okay.  Have you heard commentary about women's
 5        anatomy, say, commenting on a woman's
 6        appearance, in the workplace?
 7   A.   Yeah, sure.
 8   Q.   Okay.  And have you heard foul language that --
 9        that may have some sexual component to it?
10   A.   Yes.

                            288

 1   Q.   Let's -- Let's move on to foul language.  Give
 2        me an example of the foul language that you've
 3        heard?
 4   A.   Every word that you could think of, you know.

            Mr. Vassallo, like the majority of the witnesses was unable to clearly categorize Mr. Eveland’s actions.

                            289

 5   Q.   Okay.  Did it feel like it, to you, that he was
 6        hitting on you?
 7   A.   Or  something.  It was weird.  It definitely
 8        felt like more than a joke.

                            295

15   Q.   Okay.  So how many discussions did you have
16        like this about Mr. Eveland?  I mean, was this
17        a common type of --
18   A.   No, just a few.  But, I mean, his comments were
19        pretty constant, so we'd oftentimes say, "Hmm,
20        I don't know."  But it wasn't an ongoing thing;
21        it was just, "What's the" -- "What's the matter
22        with that dude?" you know.  Because I think
23        it's pretty widely known around the bureau, and
24        at least the labor -- the labor employees know
25        about his actions.

            I agree with Mr. Vassallo’s assessment; Mr. Eveland is weird, and as I write this decision I find myself thinking “Hmmm, I don’t know,” and “what’s the matter with that dude.”  However, the City has failed to prove by clear and convincing evidence that Mr. Eveland’s actions were more than mere “jokes” or horseplay, albeit horseplay that should lead to discipline.

Michael Geelan 

            In the summer of 2004 Mr. Eveland was conversing with Mr. Geelan about his family and was expressing disgust about Mr. Geelan’s habit of chewing tobacco when he grabbed Mr. Geelan’s vest and pulled him toward him while making kissing noises.  Mr. Eveland claims he was “joking.”  Chris Reed witnessed the “kiss” of Mr. Geelan leading one to believe that Mr. Eveland was not seeking to be furtive in his actions. Mr. Reed recognized the “kiss” as horseplay and an attempt at humor rather than an attempt to kiss Mr. Geelan and also recalls Mr. Geelan responding in a way that demonstrated his own perception that this was not sexual or harassment.  Mr. Geelan and Mr. Eveland had some history of banter and joking, and Mr. Geelan did not discourage the jokes.  

                            142                                                          

 1   Q.   (By Ms. Kraut)  Well, your testimony is that
 2   Mr. Eveland would maybe off-color remarks, correct?
 3   A.   Correct.
 4   Q.   And what I'm trying to get at is when you did make -
 5  and he can't remember.  I've asked him.  So I'm trying to get
 6   to, well, when he did make those remarks, how did you react?
 7    A.   Usually I would just -- I don't know how to respond
 8   exactly.  I mean, sometimes joke back, sometimes not,
 9   sometimes just kind of blow it off, go about what I was
10   doing.

                            144

10   Q.   Is it your testimony that you encouraged Mr. Eveland
11   to engage in off-color joking?
12    A.   I would not necessarily say I encouraged him.  I did
13   not discourage it.

                            146

10   Q.   And what happened when you were that close to him?
11   A.   I can't recall the specific conversation, but he
12   grabbed me by my safety vest and pulled me close to him.  I
13   would assume, from what I can recall, in a joking fashion,
14   that he was going to try to kiss me, but –
Mr. Geelan never complained to management about any of the actions of Mr. Eveland and felt that he might have been joking:

                            149

 7   Q.   You didn't talk to a manager?
 8   A.   No.
 9   Q.   Why not?
10  A.   I can't say specifically why I didn't.  I don't know
11   for sure why I didn't.  Part of it was I felt like I'd like
12   to believe that he was joking and that it wasn't as big of a
13   deal as maybe it is here today. The other part is that I had
14   barely been on the job, you know, but a few months.  I did

15   not want to start a bunch of problems while I was brand new.
16   I was very happy to be employed with the city, excited about
17   it, and didn't want to really go, you know, down that route
18   right off the bat, you know, right in the door.

                            158

10   Q.   Okay.  Do you recall during your investigative
11  interview saying that that incident didn't really bother you?
12      A.   I believe I said that at the time, yes.  And what I
13   meant by that was I didn't feel like I needed to go right up
14   and tell somebody. You know, I felt like maybe he was joking
15   and, you know, with my response he let go and that was that.                                                                   

            As with all of the alleged misconduct there is a question as to whether Mr. Eveland was joking.  During Mr. Geelan’s investigative interview, Linda Johnson began by asking an open-ended question that did not single-out Mr. Eveland:  “What can you tell us about any inappropriate behavior by a fellow coworker?”  In response, Mr. Geelen stated:  “As far as I know, I don’t recall any inappropriate behavior by any of my coworkers that I witnessed.”  One could conclude that Mr. Geelen thought of this occurrence as harmless horseplay.

            Even if the prank had been a sexual advance, the City would have difficulty in terminating Mr. Eveland for this behavior. As arbitrator Cavanaugh has previously found:

the central fact is that she apparently did not find his actions so offensive as to cause her  to voice objection immediately or even to exhibit her displeasure. As soon as she did so, however, Grievant promptly apologized and promised not to do it again. In other words, while this may be a case of unwanted physical contact, that fact in itself does not necessarily establish that Grievant’s actions were so egregious as to justify a penalty toward the harsher end of the scale.[15]

            The City has failed to prove by clear and convincing evidence that the Mr. Eveland’s actions were more than mere “jokes” or horseplay albeit horseplay that should lead to discipline.

Joe Curry

            Joe Curry worked with Mr. Eveland in 2006, when a news team was documenting the Maintenance Bureau’s work on potholes.  While driving to a new location, Mr. Eveland suggested that it might be fun to pose as a gay couple for the news team as a joke and suggested that they act as “life partners” and kiss on TV.  Mr. Curry was not amused.  To this day Mr. Curry seems unclear in his own mind as to whether Mr. Eveland was serious. 

                            170

13   Q.   Did you think he was joking or serious?
14   A.   It's hard to say.  I mean, it makes the hairs stand
15   up on your neck.  You know, a lot of things do that, you
16   know.

                            180

18   THE ARBITRATOR:  Did you feel sexually harassed?
19   THE WITNESS:  Yes, that way maybe.  I don't
20   know.  I've never had it happen to me before so it's hard to
21   figure out, you know, what sexual harassment is.

            Mr. Curry was aware that sexual banter occurs in the workplace.

                            177

10   Q.   Sure.  Now, joking in the workplace is not uncommon,
11   correct?
12   A.   Correct.
13   Q.   And some of it can be off color; is that correct?
14   A.   Off color?
15   Q.   Sexual or what you might refer to as dirty jokes,
16   this kind of thing?
17   A.   Yeah.  I mean, you hear it.

            Mr. Curry’s testimony also seems to contradict the City’s theory that Mr. Eveland was seeking to harass vulnerable employees in private. In this instance Mr. Eveland was seeking to flout his faux-homosexual behavior on the six-o-clock news. While I certainly agree with Mr. Curry’s view that Mr. Eveland’s conduct “makes the hairs stand up on your  neck” the City has failed to prove by clear and convincing evidence that the Mr. Eveland’s actions were more than mere “jokes” or horseplay albeit horseplay that should lead to discipline.

Mitch Talley

            In 2005 Mr. Talley and Mr. Eveland were working as a team. While driving to a new location Mr. Talley indicated that he needed to use a bathroom. Mr. Eveland then gave Mr. Talley several jabs in the area of his bladder.  Mr. Talley did nothing in response and did not complain to management. 

            There was no evidence produced at the hearing to indicate that the activity with Mr. Talley was anything but horseplay, albeit stupid puerile horseplay that should lead to discipline.

Thomas Aubuchon

 While working together as a team in 2006, Mr. Aubuchon criticized the way Mr. Eveland had parked the City vehicle.  Mr. Eveland was put on the defensive as indicated by his response, “If you don’t like it, right here . . .” and pointed in the general direction of his crotch.   The City in its Notice of Intent to Discharge described the incident as “On January 18, 2006, you were working on a two-person crew with Thomas Aubuchon.  You asked him to touch your genitals, which made him feel uncomfortable.”

This particular allegation shows the extent to which the City mischaracterized Mr. Eveland’s foul language and horseplay as sexual conduct.   As Mr. Aubuchon testified:

                            189

 6   THE ARBITRATOR:  Is there more than one
 7   interpretation of what he said?
 8   THE WITNESS:  I've thought about it over the
 9   past several months,and to be honest with you, he could have
10   been saying:  If you don't like the way I have driving, then
11   you sit in this seat.  At that time I felt he was saying --
12   he was referring to his crotch.  But in all fairness, there
13   is that possibility; you drive, basically.
14  He could have said:  If you don't like it, then
15   you take the steering wheel.  You drive.  That would have
16   been a little more clearer, but I didn't want to -- like I
17   said, I didn't want to give weight to the conversation, the
18   way I thought it was going at the time, and I didn't want to
19   judge him on one statement.

            While I don’t find Mr. Aubuchon’s or Mr. Eveland’s current testimony regarding this incident as persuasive, I do find that it is more-probable-than-not that Mr. Eveland was making universally accepted hand gesture for “bite me,” a gesture well known on sixth-grade playgrounds throughout the world. The City has once again failed to prove by clear and convincing evidence that the Mr. Eveland’s actions were more than mere “jokes” or horseplay albeit horseplay that should lead to discipline.

Dan Sherwood 

            Mr. Eveland called Mr. Sherwood a “candy ass” on at least one occasion but stopped when requested. On more than one occasion Mr. Eveland told Mr. Sherwood that “by the end of the day you’re going to be sucking my dick and liking it.”[16]  On one occasion when they were driving Mr. Eveland pushed on Mr. Sherwood’s arm and then started tricking Mr. Sherwood into turning toward his upheld finger so that he could enjoy watching him react reflexively to an object too near his eye.  Mr. Eveland persisted in subjecting Mr. Sherwood to this trick several times before abandoning it.  Mr. Sherwood did not complain to management.  Mr. Sherwood was not clear whether Mr. Eveland was being mean spirited or just joking.

                            213

 3   Q.   All right.  Did you and Mr. Eveland ever have a good
 4   relationship?
 5   A.   Yeah.  I like Brad and we do get work done.  It's
 6   just some of the comments and gestures I didn't appreciate.
 7   Maybe that's his way of being fun.  I don't know, but I
 8   couldn't tell.
 9   Q.   All right.  And so you didn't really know if this was
10   a sense of humor versus somebody being mean spirited or
11   trying to be inappropriate in some other way; is that
12   correct?
13   A.   Yes.

            The City has again failed to prove by clear and convincing evidence that the Mr. Eveland’s actions were more than mere “jokes” or horseplay albeit horseplay that should lead to discipline.

Don Jahn

Don Jahn and Mr. Eveland worked together at the end of 2005 and beginning of 2006.  Mr. Eveland’s behavior while in a four-man crew was normal, or at least normal for Mr. Eveland.  While working on two-man crews together, Mr. Eveland made several comments.  On one occasion Mr. Eveland asked Mr. Jahn “What’s the matter?  Do you need me to give you a hug?”  Prior to Valentines Day 2006, Mr. Eveland asked Mr. Jahn what he was getting him for Valentine’s Day.  The final day they worked together, Mr. Eveland commented on the appearance of a person standing by a delivery truck: “Was that a guy or a girl?  If it was a girl, she was awful butch.  And if it was a guy, he was awful cute.” Mr. Eveland laughed and reached over and touched Mr. Jahn on the shoulder as he made that comment.  Later the same afternoon, Eveland stopped the truck and shut the motor off.  He turned to Mr. Jahn and said: “Well, since I had to drive all day and I worked so hard, I think I should get a back rub.” This last statement, combined with Eveland’s other conduct put Mr. Jahn “over the edge.” 

All of the comments above are innocuous by themselves; however Mr. Jahn believed that they represented a homosexual overture by Mr. Eveland.

                            254

16   Q.   Mr. Jahn, just a couple more.  So it sounds
17        like maybe part of why you were struggling when
18        you were asked by Ms. Kraut about the types of
19        sexual joking or sexual banter that goes on in
20        the workplace, it's a pretty common occurrence,
21        isn't it?
22   A.   I wouldn't say real common, but it happens.
23        It's not an everyday thing, but...
24   Q.   It's not the kind of thing that's going to jump
25        out at you and you're likely to remember each

                            255

 1        -- each incident; correct?
 2   A.   No.
 3   Q.   Is that correct?
 4   A.   That's correct.
 5   Q.   Okay.  And so the incidents with Mr. Eveland,
 6        that you've testified to here today -- and
 7        correct me if I'm wrong -- really, the reason
 8        those bother you is not because they were
 9        sexual or kind of in that direction, but it's
10        actually the homosexual part of it that made
11        you uncomfortable; is that right?
12   A.   Yes.

            The totality of the evidence indicates that Mr. Jahn believed Mr. Eveland to be gay. The City has again failed to prove by clear and convincing evidence that Mr. Eveland’s actions were more than innocuous comments which took place over a two year period.  While I believe that a preponderance of the evidence indicates that Mr. Eveland was again engaging in faux-gay behavior (possibly to irritate a homophobic co-worker) the evidence does not rise to the level of clear-and-convincing.

            In short, the City’s own witnesses did not support a finding that Mr. Eveland’s activities resulted in a hostile or intimidating work place. A workplace must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.”[17]  The majority of alleged victims in this case simply shrugged off Mr. Eveland’s childish behavior. Importantly none of the alleged victims felt strongly enough about Mr. Eveland to complain to a supervisor.

The City argues that Mr. Eveland “tormented them and they suffered in silence until Paul Faltersack brought the matter to Linda Johnson’s attention in February 2006.” Yet, none of the witnesses testified that they suffered or were traumatized, rather the general feeling was merely wondering as Mr. Vassallo did: “What’s the matter with this dude.”

            Further, the City ignores the fact that Mr. Eveland would stop his insipid behavior when requested.  The City cites Ralph’s Grocery Company[18] to support the discharge; however other Arbitrator’s have found it distinguishable 

Of the cases cited by the City as persuasive arbitral precedent, the closest factual match is Ralph’s Grocery Company, 112 LA 120 (Prayzich, 1999), but while there are many similarities to this case, the critical fact is distinguishable—namely, Arbiter Prayzich found as a fact that the victim in that case had vocally objected to the first “kissing incident” and therefore the second incident established that the grievant was a repeat offender for whom discharge was an appropriate penalty. Id. at 123-24. In this case, by contrast, it is uncontested that Grievant did not continue his conduct once DW communicated to him that it was unwelcome.[19]

A common sense approach to this issue was posited by Pete Schillaci:

                            559

 2   Q.   Yeah.  I'm -- I'm just trying to ask you why,
 3        when you indicated that the employee who
 4        doesn't like that kind of contact should inform
 5        that person who's doing it to stop, why is
 6        that?
 7   A.   Well, I believe our employees had training,
 8        too, on the rule; and that's the first step or
 9        the first phase.  I mean, if you have an issue
10        with somebody, especially with a harassment
11        issue, to tell the person to stop, you know.
12        And I believe our employees know that; that's
13        why I would expect my employee to tell the
14        person to stop, because that's the first thing
15        I would ask them, is:  "Did you tell the person
16        to stop?"

            The City argues that all of the employees Mr. Eveland “harassed” were new and vulnerable employees and that the Mr. Eveland’s conduct was selective, motivated by a desire to “test the waters” with newer male employees, and thus is sexually predatory in nature. Essentially the City argues that Mr. Vassallo, Mr. Sherwood, Mr. Curry, Mr. Geelan, Mr. Talley, Mr. Jahn, and Mr. Aubuchon, were too intimidated to confront Mr. Eveland or report his behavior to supervisors. 

            However, the weight of evidence indicated that  Mr. Vassallo, Mr. Sherwood, Mr. Curry, Mr. Geelan, Mr. Talley, Mr. Jahn, and Mr. Aubuchon were experienced construction workers who were more than able to take care of themselves and tell Mr. Eveland to discontinue his humor and pranks – and did so.  At the hearing Mr. Eveland appeared far older than his alleged victims as well as being out of shape.  No witness testified that they failed to say “no” to Mr. Eveland because they were intimidated or scared.

What is the Appropriate Penalty?

            While the City produced substantial evidence to show that Mr. Eveland was sexually harassing his co-workers, the evidence produced does not rise to the level of a preponderance. 

What the City has proved is a number of occurrences of horseplay and vulgar conduct. While the vulgar conduct is objectionable, it is apparently rather commonplace. When asked what type of objectionable language he hears at work, Mr. Vassallo replied forthrightly “Every word that you could think of, you know,” and, “the people I work with are not to be confused with nuns.”

While comparable penalties for employee cursing in the city of Portland were not provided, common sense and the principals of Just Cause would require a written warning for much of Mr. Eveland’s vulgarity at the time it occurred. Mere vulgarity is insufficient to warrant a severe penalty and arbitrators have not hesitated to reverse disciplinary actions based on an employees' language.[20] While I don’t condone the use of profanity, I do recognize that its use might occur on a street paving crew.[21]

It should also be noted that that employee conduct changed after the Maintenance Bureau fired Eveland; as Mr. Meeker testified:

            This whole thing with Eveland and everything like that has really got everybody at my work watching their P’s and Q’s.  No one’s saying anything that’s not – like, you know, they’re trying not to say anything that could be taken the wrong way, or anything like that, because everyone’s really in a scare about getting fired and everything over – about this happening.  So people are really watching everything, especially since all of this has happened. 

Clearly the City has the right to impose whatever standards it feels is appropriate going forward and one hopes that the employees at the Maintenance Bureau continue to watch their “P’s and Q’s.”

The more serious acts that Mr. Eveland is clearly guilty of are horseplay that was both embarrassingly immature and unsafe. Unlike acts of theft or violence, horseplay is not usually thought to be so severe as to obviate the possibility of a change of behavior and warrant immediate discharge.[22]  Be it jabbing Mr. Talley in the bladder, grabbing Mr. Vassallo, the bizarre “eye pointing” episode with Mr. Sherwood, or a number of other episodes, Mr. Eveland deserves discipline. 

Each of the prior episodes would deserve a written warning or short suspension with notice that future acts would lead to termination.  In the instant case, Mr. Eveland has gotten lucky in that his employer found all of his insipid conduct at once and he had never been warned about his horseplay.  He is being warned now: future acts of non-work related touching of any other employee should result in immediate discharge regardless of whether it is consensual.  Mr. Eveland’s immaturity has cost the City of Portland enough time and money.

Further, the City has clearly placed Mr. Eveland on notice that his vulgar language is not acceptable.  Future use of vulgarity is cause for future discipline, including discharge.  I do believe Mr. Eveland when he stated, “I mean if I offended someone, I wish they would have said something, I would never do it.  There’s guys that here to this day that joke with me the same way I joke with them.”  I believe that there may even be others at work who find Mr. Eveland amusing, however, his employer does not, and it is his employer who gets to make the rules.

            Given a lack of comparable discipline administered by the City and that Mr. Eveland had never been disciplined regarding horseplay or vulgarity I find that a thirty-day suspension with a final warning is the most severe corrective discipline that would be upheld by an arbitrator. 

CONCLUSION

The burden is on the City to show by clear and convincing evidence that just cause existed to terminate the Grievant, Brad Eveland.  While the legal arguments posited by the City all have merit and substantial evidence was introduced to support them, the evidence did not rise to the level of clear-and-convincing. While just cause exists for discipline, the City has not met its burden of proof as to discharge as it was not shown that Mr. Eveland engaged in sexual harassment.  While a remedy of back-pay in this situation is harsh given the closeness of this case, it is required by Section 34.7 of the parties Collective Bargaining Agreement

AWARD

The grievance is sustained.  The City will reduce Mr. Eveland’s discharge to a thirty day suspension with a final warning and reimburse him for all lost pay and benefits less any interim earnings (including Unemployment Insurance). All fees and expenses charged by the Arbitrator shall be borne equally by the parties, as provided for in the Collective Bargaining Agreement, Article 35.3.6.1.1.1.d.

__________________________

David Gaba, Arbitrator

                                                                        May 5, 2007
                                                                        Seattle, Washington



[1] In fact Mr. Vassalo was using the term “bear” to mean a “big, older, hairy, homosexual.”
[2] Rabanco Recycling, 118 LA 1411 (2003).

[3] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[4] State of Alaska, 114 LA 1305 (2000).

[5] Enterprise Wire Co., 46 LA 359, 363-4 (1966).
[6] Enterprise Wire Co., 46 LA 359, 362 (1966).

[7]
Elkouri and Elkouri, How Arbitration Works 905 (5th Ed. 1987).

[8]
General Telephone Co. of California, 73 LA 531, 533 (Richman, 1979).  See also:   Atlantic Southeast Airlines, Inc., 101 LA 515 (Nolan, 1993) (using clear and convincing standard); J. R. Simplot Co., 103 LA 865 (Tilbury, 1994) (same); Collins Food International, Inc., 77 LA 483, 484-485 (Richman, 1981) (same).  The Employer bears this burden of proof both with respect to proving the alleged violation, and with respect to demonstrating the appropriateness of the penalty.  Pepsi-Cola Co., 104 LA 1141 (Hockenberry, 1995).

[9]
Employer Brief at 27.

[10]
City of Portland and AFSCME Local 189, Unreported (Cavanaugh, 2005).

[11]
Employer Brief at 27.

[12]
Off the Wall, Eminem (2004). Capitalization in the original.

[15]
City of Portland and AFSCME Local 189, Unreported (Cavanaugh, 2005).

[16]
Although Mr. Sherwood used the “penis” instead of “dick” in this testimony.

[17] Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). 


[18]
Ralph’s Grocery Company, 112 LA 120 (Prayzich, 1999).

[19]
City of Portland and AFSCME Local 189, Unreported (Cavanaugh, 2005).

[20] Interstate Brands, 83 LA 497 (Richmond, 1984); Kaiser Steel Corp., 49 LA 507 (Jones, 1967); Veterans Administration Medical Center, 76 LA 412 (Pastore, 1981); Challenge Machinery Co., 81 LA 865 (Roumell, 1983); Sanyo Manufacturing Corp., 85 LA 207 (Kelliher, 1985); Social Security Administration, 81 LA 1051 (Muessig, 1983); White Engines, 80 LA 1038 (Curry, 1983); City of Los Angeles, 64 LA 751 (Tamoush, 1975).

[21] As stated by Arbitrator Tilbury:  “Unless this plant differs from the norm, it is probable that the King's English is hammered several times a day. It has also been noted by more than one grammarian of late that the use of profanity has, unfortunately, increased in quantity and in tone in recent years…  Like many others, I deplore the cavalier way in which our language has been kicked around. However, it would be wrong to adopt a sanctimonious approach or to pretend that we live in the best of all possible worlds.” Freightliner Corp., 95 LA 302 (1990).

[22]Discipline and Discharge in Arbitration, pp. 286-88 Norman Brand, (BNA, 1998).  

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